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GSRich’s Comments

I can't agree that that's a relevant distinction. You're essentially saying that the SA refers to a pre-existing right, and that requires a belief in natural law.

But without even debating natural law, positivism, etc., it's irrelevant whether the text concerns a positively granted right or merely the acknowledgement of a pre-existing right. The only issue is the scope of the right, and both the SA and the CC contain prefatory language that may or may not limit the scope of the right. The introductory text does not limit the scope of the SA, and it therefore seems reasonable that it may not limit the scope of the CC.

While I appreciate this article's emphasis on the Constitution's 'to promote the Progress' language, I think it's important to note that the Supreme Court does not necessarily find such language controlling. I refer to the Heller case, where the 2nd Amendment was interpreted. The 'Militia' language in the 2nd Amendment is similar to the Copyright clause. From the text, it would appear that the right to bear arms should be understood only in the context of a Militia, just as the text of the Copyright clause suggests that the exclusive Right to Authors and Inventors should be understood only insofar as it promotes Progress. Nevertheless, the SC recognized an individual's right to bear arms (absent a Militia), and they could just as easily recognize an exclusive Right to Copyrights or Patents that is not limited to a paradigm that promotes Progress.